United States v. Strubberg, No. 17-2087 (8th Cir. 2019)
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The Eighth Circuit affirmed defendant's conviction for attempting to entice a minor to engage in sexual activity. The court held that the evidence was sufficient to convict defendant because he took a substantial step to accomplish the offense.
The court also held that the district court did not err by rejecting the entrapment defense or by instructing the jury it could not allow the fact that the government used deceptive means during the sting operation to affect its verdict. The court noted that it shared the Seventh Circuit's concern that the instruction could signal indirect judicial approval of the government's management of the investigation. However, in this case, the evidence was so overwhelming that any possible error would be harmless. Although the court did not endorse or encourage giving this instruction. Finally, the court declined to vacate defendant's special conditions on plain error review because they were not obviously impermissible.
Court Description: Grasz, Author, with Gruender and Kelly, Circuit Judges] Criminal case - Criminal law and sentencing. Evidence was sufficient to support defendant's conviction for attempting to entice a minor to engage in sexual activity as the evidence showed he took a substantial step to accomplishing the offense; the district court did not err in rejecting defendant's request for an entrapment instruction; no error in instructing the jury it could not allow the fact that the government used deceptive means during the sting operation to affect its verdict - the court notes that this is an issue of first impression in this circuit and that it shares the Seventh Circuit's concern that the instruction could signal judicial approval of the government's management of the investigation; the court does not endorse or encourage the giving of a a deceptive investigative techniques instruction; however, the evidence of defendant's guilt is so overwhelming that any error in giving the instruction in this case is harmless; defendant did not object to any of the special conditions imposed in his supervised release, and the conditions are reviewed under the standard that the condition is obviously impermissible; defendant cannot meet this high burden and the court will not reverse the imposition of the special conditions.
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